Davis Brown Immigration Law Blog

Initial Outline of the President's Executive Action on Immigration - November 21, 2014

We reviewed the outlines of the President's plan on immigration that he announced last night. These are broad outlines gained from a meeting with the White House that included staff of the American Immigration Lawyers Association and the American Immigration Council. The following is preliminary and is not legal advice.

The program, started in 2012 to allow registration and the issuance of work permits to children brought to the U.S. by their parents without authorization, will be expanded to:

Remove the age cap and

Move forward the date of arrival for eligibility to January 1, 2010.

The registration (and we assume work permission) will be granted for a period of three years rather than two (and this will include those with pending renewal applications).

This program is expected to go into effect within 90 days.

Deferred Action for Parents (DAP)

Parents of U.S. citizens and lawful permanent residents (of any age) who have been "continuously present" since January 1, 2010, will also be eligible for deferred action. This means registration and work permit for three years. Applicants will need to pass a background check and pay taxes. Parents of DACA recipients are not eligible.

This program is expected to go into effect within 180 days.

Clarification of Advance Parole and Subsequent Eligibility for Adjustment of Status

Guidance will be provided regarding when advance parole (permission to travel outside the U.S. and re-enter) will be granted and how it can be used. In certain situations, those receiving deferred action status will be able to use advance parole to leave, re-enter and then qualify for "adjustment of status" (the green card application) if they have a basis for this application, such as a sponsoring relative or job.

The decision to leave the U.S. on advance parole should only be made after consulting a competent immigration attorney.

Acceleration of Adjustment of Status

While the details are not completely clear at this time, USCIS will amend regulations to re-interpret the definition of when a visa is "immediately available" for the purposes of applying for adjustment of status. The goal of this regulation will be to allow those in the employment-based immigration waiting line to apply for the green card sooner. It is expected to affect approximately 400,000 people.

Because the change is being made by regulation, we have no idea when it will be in place or the parameters of the change.

Relief for Entrepreneurs, Researchers, Inventors and Founders

USCIS will issue guidance to define when entrepreneurs, researchers, inventors and founders should be granted immigration in the national interest under the existing EB2 NIW category. This is expected to be an interpretive memo that would guide adjudication of cases.

Additionally, certain entrepreneurs and "job creators" will be eligible for "parole" (if outside the U.S.) or "parole in place" (if inside the U.S.) per new regulations to be issued. Parole is not a "status" but it would allow individuals to work and live in the U.S. This could assist in certain situations where no visa category readily applies or a person has exhausted H-1B time, for example.

We have no indication of the time frame to provide this guidance or regulation. Typically guidance is issued before new regulations, which comply with the Administrative Procedures Act.

Other Employment-Based Relief Measures

H-4 EADs: The proposal to give work permission to spouses of H-1B workers is expected to be issued in December or January.

Portability expansion: The definition of a "same or similar" job is expected to be clarified.

L-1B guidance: Guidance to clarify the definition of "specialized knowledge" is expected to be released, which we hope will rationalize adjudications to make international transfers less onerous.

STEM OPT expansion: STEM OPT duration is expected to be lengthened from the current 17 months. Possible definition expansions are being considered. This will be done through regulation.

a. Suspected terrorists, convicted felons, convicted gang members and those apprehended on the border;

b. People convicted of serious or multiple misdemeanors and very recent entrants; and

c. Those ordered removed who failed to leave (after January 1, 2014); and

3. Discontinuing the "Secure Communities" program and replacing it the "Priority Enforcement Program," the details of which are unclear at this time.

No change is happening immediately. The details of each program will take weeks or months to be known and explained. Whether a provision of the plan applies to you will depend on the details of the plan and your specific situation.

We urge you to seek specific legal advice from a qualified immigration attorney. We are happy to help you, but will not know any more details than are in this memo until more information is released. We will continue to inform our clients of news as it happens.

NOTE: IF ANYONE TELLS YOU THAT YOU CAN APPLY FOR A GREEN CARD NOW OR WANTS TO TAKE YOUR MONEY TO APPLY UNDER THE PRESIDENT'S PLAN AT THIS TIME, BE CAREFUL! CALL AN IMMIGRATION ATTORNEY FOR RELIABLE INFORMATION.